The E. coli O157:H7 outbreak that is the subject of this claim is but one part of a big, multistate outbreak that seriously injured dozens of innocent victims. The source of the E. coli O157:H7 that infected all these victims was adulterated meat manufactured and sold by Nebraska Beef, a company from which no reasonable restaurant, grocery store, or any other retail outlet should have ever been doing business. For its part, the Barbecue Pit, a restaurant that very definitely used Nebraska Beef meat—top sirloin butt—may or may not have known that Nebraska Beef was its source. But there is no question that the outbreak was caused by cross-contamination in the restaurant.

At the request of the Southwest Georgia Public Health District, Barbecue Pit shut-down temporarily, on July 2, to give investigators full access in their hunt to determine if the restaurant was the source of infection that had sickened scores of people in the area. It was subsequently confirmed that the restaurant was in fact the source of infection. Tests of meat samples from the restaurant were positive for E. coli O157:H7, and PFGE testing of the bacterial isolated were found to be indistinguishable from patient isolates. The tests also found that these isolates were indistinguishable from national outbreak pattern—i.e., the previously-identified strain that had caused infections in other parts of the country.

An environmental investigation conducted at the restaurant found much evidence of cross-contamination attributable to unsafe practices. The restaurant used the gooseneck cuts to make shredded beef and ground beef, which it ground itself. There were no grind-logs kept, however. More troubling, there was no designated hand-washing sink, and the one available sink for hand-washing was also used to wash lettuce. The meat grinder was also found to be in close proximity to the coleslaw chopper, and cutting boards were old, deeply cracked, and used interchangeably for cutting meat and other food items. Finally, raw meat was stored in cracked plastic dishwashing bins that were difficult to clean. As a result, there was ample proof that customers were infected by the consumption of tainted food made that way through cross-contamination from adulterated Nebraska Beef meat.

Nebraska Beef’s Six-Plus Years of Serious Food Safety Violations

Nebraska Beef and its meat-processing plant not only has a long history of safety and health violations, it has repeatedly been the target of USDA efforts to shut it down, including this year. This sordid history is summarized in a recent front-page, investigative news article that was published in the Washington Post, which stated:

Nebraska Beef has a contentious history with the USDA. Over the past six years, federal meat inspectors have repeatedly written it up for sanitation violations, and the company has fought back in court.

From September 2002 to February 2003, USDA shut down the plant three times for problems such as feces on carcasses, water dripping off pipes onto meat, paint peeling onto equipment and plugged-up meat wash sinks, according to agency records.

After the third suspension, Nebraska Beef took USDA to court, arguing that another shutdown would put the company out of business. A judge agreed and temporarily blocked the department. The USDA and the company then settled out of court and inspections resumed. However, when federal meat inspectors found more violations, Nebraska Beef sued the department and the inspectors individually, accusing them of bias. The suit was later dismissed.

In 2004 and early 2005, Nebraska Beef ran afoul of new regulations aimed at keeping animal parts that may be infected with bovine spongiform encephalopathy, or mad cow disease, out of the meat supply. Meat processors are required to remove certain high-risk parts, such as brains and spinal cords. Between July 2004 and February 2005, federal meat inspectors wrote up Nebraska Beef at least five times for not removing spinal cords and heads, according to USDA records obtained by Food and Water Watch, a Washington advocacy group. The company corrected the problems.

In August 2006, federal meat inspectors threatened to suspend operations at the packing house for not following requirements for controlling E. coli. The company corrected the problem a week later, USDA records show.

The hundreds of safety and sanitation violations from April 2002 through February 2003 include dozens of instances of documented fecal contamination—the major source of E. coli O157:H7—on beef carcasses and other cut meat items, like chuck rolls. There were also repeated instances where failures were identified in the plant’s E. coli testing program. And nearly every violation for that time period involved the plant’s failure “to prevent insanitary conditions or the adulteration of product.”

Ultimately, it was the regrettable history of food safety violations, and the threat the plant and its meat products posed to the public health, that prompted the USDA to conduct a “comprehensive public health assessment…during the week of September 2, 2002.” According to the legal brief later filed by the USDA in its attempt to shut down Nebraska Beef’s plant and operations:

That assessment was conducted because Nebraska Beef was one of the few suppliers of meat products used to prepare ground beef which was identified to contain E. coli O157:H7. The evidence…will show that Nebraska Beef provided a large amount of the meat products used to prepare the contaminated ground beef.

Accordingly, USDA argued that the Court should not prevent it from shutting the plant down, explaining:

FSIS has determined after extensive oversight that Nebraska Beef’s HACCP system is not working, and that its products are being produced under insanitary conditions that may make them unsafe for human consumption….Anyone who might handle or consume Plaintiffs’ [Nebraska Beef] products is therefore being exposed to greater than normal risk.

There is ample evidence that Nebraska Beef continued to run its meat-processing plant in a way that put the public at a “greater than normal risk” when consuming its products. This risk was because the plant’s HACCP and other safety systems—e.g., Standard Sanitation Operation Procedures (SSOP’s) and E. coli testing program—were insufficient or simply not working. The earlier E. coli outbreak caused by Nebraska Beef meat that occurred during the summer of 2006 is but one piece of such evidence. Indeed, in a striking replay of what had occurred in 2003, the USDA once more tried to shut down Nebraska Beef’s plant. Specifically:

On August 3, 2006, the Food Safety and Inspection Service (FSIS) issued establishment 19336, Nebraska Beef, a Notice of Intended Enforcement (NOIE). This decision was based on the finding noted during the Comprehensive Food Safety Assessment performed at [its] establishment from July 10, 2006 through August 3, 2006.

Not coincidentally, this time period was the one leading up to and including the same time period as the first Nebraska Beef E. coli Outbreak.

The NOIE Letter that FSIS sent to Nebraska Beef on August 3, 2006 is replete with examples of unsafe and insanitary practices and conditions at the plant in the months—if not years—leading up to the Longville E. coli outbreak. FSIS notes numerous noncompliances, including: the insufficiency and failure of its E. coli testing program; the failure to maintain or implement SSOP’s in compliance with regulatory requirements; and HACCP system that was inadequate because it “allowed adulterated product to be produced,” and failed to meet numerous other regulatory requirements.

Another Outbreak, and FSIS Attempt to Shut Nebraska Beef Down

Since the Longville E. coli outbreak, Nebraska Beef has been involved in another E. coli O157:H7 outbreak linked by FSIS, CDC, and other public health officials to contaminated meat products like those implicated in the present case—i.e., 60-pound boxes of Nebraska Beef chuck rolls. See, e.g. FSIS Recall No. 022-2008, dated June 30, 2008. According to FSIS:

[it] has concluded that the production practices employed by Nebraska Beef, Ltd. are insufficient to effectively control E. coli O157:H7 in their beef products that are intended for grinding. The products subject to recall [including chuck rolls] may have been produced under insanitary conditions.

See, e.g. FSIS Recall No. 022-2008, dated June 30, 2008. The cited practices and conditions have also been explicitly linked to insufficiencies that were subject to FSIS Noncompliance Reports as far as April 25, 2002 involving, among other things, insanitary practices in the fabrication area—i.e., the part of the plant where carcasses are turned into primal and subprimals. The Nebraska Beef plant has been operating with a broken safety system for over six years, and all aspects of its plant and operations are evidence of Nebraska Beef’s long history of continuing negligence—indeed, negligence so severe that it appears consciously indifferent to the safety and well-being of the consuming public, including the plaintiffs in this present action.

Unfortunately, not many ordinary consumers know of the systemic problems at Nebraska Beef, and those who are unaware have regrettably placed their faith in this company who so woodenly adheres to its intransigent, dilapidated, and mostly non-existent, food safety practices. The world would certainly be a better place if Nebraska Beef simply vanished as a link in our country’s food chain.

Perhaps more reprehensible than Nebraska Beef, however, are the companies that continue to buy or use Nebraska Beef’s products. These companies, which include many otherwise respectable organizations like Kroger and Whole Foods, simply have no excuse for what transpired in summer 2008. These companies have actual knowledge of the USDA’s repeated efforts to shut Nebraska Beef down.

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Laura Hendley, R.S.

Am I reading this right? What will happen to this company with repeated critical item violations that has repeatedly caused illness outbreaks? Will they be convicted of negligence? I thought it was bad enough that facilities who have not yet been linked with an outbreak be allowed to operate with repeat critical item violations, but this facility has been linked with more than one outbreak. At what point will enforcement be considered necessary? Why are USDA, FDA, state and local health departments so miserably unsuccessful at enforcing regulations? Even when these things go to court, these agencies lose.

About Bill Marler

Bill Marler is an accomplished personal injury and products liability attorney. He began litigating foodborne illness cases in 1993, when he represented Brianne Kiner, the most seriously injured survivor of the Jack in the Box E. coli O157:H7 outbreak.